Convergence and Divergence in English and Canadian Administrative Law I: Divergence

Paul Daly October 25, 2017

Here is the first of several extracts from a paper I am working on, on the subject of convergence and divergence in English and Canadian administrative law

At first glance, administrative law in Canada, where courts regularly defer to administrative decision-makers’ interpretations of law and judicial review of administrative action is organised around the concept of reasonableness, is very different to administrative law in England, where courts do not defer to administrative interpretations of law and prefer to conceive of the justification for judicial oversight of administrative action in terms of grounds of review and jurisdictional error. One might think, based on this first glance, that the differences must be attributable to deep-seated disagreement about the nature of judicial power and the allocation of interpretive authority between the branches of government. One might even suspect that such profound disagreement must rest on long-settled historical foundations. I will argue, however, that the difference between Canadian and English administrative law is best explained by relatively recent accidents of history.

The effect of the developments in England and in Canada in substantive review post-Anisminic and into the new century was to create significant divergence between the two systems. First, in England judges retained the last word on questions of law, whereas in Canada administrative decision-makers’ interpretations of law were often entitled to deference such that they could be set aside only for manifest error. Second, in Canada, the overarching approach developed to separate those questions to be reviewed deferentially from those questions to be answered authoritatively by the courts became the dominant approach, whereas in England, the old Wednesbury framework survived. It is difficult to perceive any deep-rooted institutional reasons for this divergence. The judiciary plays a similar role in the two jurisdictions – indeed, the Canadian Constitution is said to be “similar in principle” to the English Constitution[1]– and federalism concerns have been notably absent from Canadian administrative law jurisprudence. Rather, the divergence is best explained by primarily historical factors.

My brief introduction [ed: you have been spared for the purposes of this post!] to the landscape of judicial review of administrative action in 1970s Canada should not be taken as suggesting that the landscape was much loved by members of the Canadian legal community. On the contrary, the Supreme Court of Canada’s administrative law jurisprudence was regularly and roundly denounced by leading commentators. In Canada, the dominant critique of the Supreme Court of Canada, through the 1970s, was its over-interventionist approach to the review of administrative tribunals, especially labour relations tribunals. These tribunals were invariably staffed by experts –leading members of the bar and academy – who rendered careful decisions in an area that, because of the need to strike a balance between the interests of employers and employed, called for sensitive value judgements. Yet, on the Metropolitan Life approach, their decisions were subject to second guessing by judges in judicial review proceedings. As we have seen, these criticisms did not fall on deaf ears. Tribunals were often staffed by expert arbitrators, amongst them Bora Laskin, who became Chief Justice of Canada in 1973. Labour cases featured heavily on the Supreme Court’s administrative law docket, which meant that Laskin, and judges like Brian Dickson and Jean Beetz had regular opportunities to preach for deference on questions lying with labour tribunals’ expertise. Later on, Bertha Wilson[2] and Claire L’Heureux-Dubé[3] were able to take the strands of this case law and weave it in a coherent doctrinal framework.

Deference on questions of law never took hold in England. Notwithstanding the general view, expressed in the aftermath of Anisminic, that the effect of the decision was to expand judicial control of interpretations of law, counsel could have pressed subsequent courts to reinvigorate the distinction between jurisdictional and non-jurisdictional error, certainly in cases where a privative clause did not pose a challenge to rule-of-law orthodoxy. There were also elegant academic pleas to seize upon the ambiguities in Anisminic.[4] The reasons these pleas went unheard have been recounted in fascinating detail by Sir Stephen Sedley:

What happened was that it became the experience of counsel (of whom I was one) appearing during the 1970s in judicial review cases against government departments or official bodies to be told by Treasury counsel that no point was to be taken on the applicability of Anisminic. In other words, if the applicant could establish an error of law, it was not going to be argued by the Crown that it was justiciable only if it vitiated the decision-maker’s jurisdiction. It was accepted in effect that if the tribunal’s error in Anisminic truly went to its jurisdiction, as the law lords had decided it did, then the old divide between jurisdictional and non-jurisdictional error had collapsed. The goalposts had become the corner flags. This was not a trahison des clercs. It was a recognition that the Orderly development of public law required a comprehensive approach to arguable abuses of power in place of the hair-splitting distinctions which had come to disfigure the law in the inter-war years; and it should be placed on record that it was from the successive standing counsel to the Treasury – first Gordon Slynn, then Harry Woolf, then Simon Brown, then John Laws–that these initiatives came.[5]

These efforts were supported by forthright judicial dicta, expressed at the highest level, most prominently by Lord Diplock, who wasted no opportunity to expound the mantra, first expressed extra-curially, that Anisminic “renders obsolete the technical distinction between errors of law which go to ‘jurisdiction’ and errors of law which do not”.[6] Deep-seated institutional reasons do not explain the course English law has taken since Anisminic. Historical factors pre-dominate. Treasury Counsel – reflecting a widely-held view that authoritative judicial pronouncements on questions of law served the common good – did not resist the increasing scope of judicial review of errors of law. And it hardly hurt those efforts that Lord Diplock – one of the most celebrated jurists of the 20th century – expounded a similar view from the bench.

[1] As is made clear in the Preamble to the Constitution Act, 1867, 30 & 31 Vict, c 3.